State of NSW v Wilde

[2008] NSWSC 1211

Supreme Court of NSW|2008-12-12|Before: Kirby J, Price J

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Source facts

Court

Supreme Court of NSW

Decision date

2008-12-12

Before

Kirby J, Price J

Source

Original judgment source is linked above.

Judgment (50 paragraphs)

[1]

Background. 3 Mr Wilde was born on 22 December 1961. He will shortly turn 47 years. He has a substantial criminal record. It was described by Price J in a judgment given in the context of the Attorney General's first application (Attorney General for the State of New South Wales v Wilde [2007] NSWSC 1490, paras [22] to [36]). I will not repeat that description. On three separate occasions (offences 1981, 1983 and 1991), Mr Wilde has been sentenced to lengthy periods of imprisonment. The offences in each case were similar, although Mr Wilde continues to deny his guilt in respect of the second and third. The victims were young women. The first set of offences involved Mr Wilde forcing his way into the victim's home and raping her. The second set of offences occurred within a short time of Mr Wilde's release on parole. He confronted his victim with a knife with intent to have sexual intercourse, forcing oral sex upon her. He was eventually released to parole on 24 October 1991, committing the third offence within a matter of days (6 November 1991). The third set of offences likewise involved a weapon, sexual indignities upon the victim, and ultimately intercourse. Mr Wilde was sentenced to a 12 year non parole period with an additional term of 4 years. Parole was refused so that he served the full term.

[2]

The first application. 4 On 4 October 2007, that is one month before the expiration of Mr Wilde's sentence, the Attorney General made application under the Act. It was clear and uncontested that Mr Wilde was a "serious sex offender" as defined by the Act (s 4). The objects of the Act are identified in these terms: "s 3 Objects of Act (1) The primary object of this Act is to provide for the extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage serious sex offenders to undertake rehabilitation." 5 The issues which the Court, upon application, is obliged to determine, are set out in s 17, which is in these terms: "s 17 Determination of application for continuing detention order (1) The Supreme Court may determine an application under this Part for a continuing detention order: (a) by making an extended supervision order, or (b) by making a continuing detention order, or (c) by dismissing the application. (2) An extended supervision order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision. (3) A continuing detention order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision and that adequate supervision will not be provided by an extended supervision order. (4) In determining whether or not to make a continuing detention order or extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter is considers relevant: (a) the safety of the community, (b) the reports received from the persons appointed under section 15(4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious sex offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious sex offence, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (f) the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature. …" 6 The Court of Appeal has considered these provisions. It has determined the meaning to be given to the words in ss 17(2) and (3), "satisfied to a high degree of probability that the offender is likely to commit a further sex offence" (Tillman v Attorney General for New South Wales [2007] NSWCA 327; (2007) 178 A Crim R 133, esp paras [21], [89]-[92], cf Mason P at [13]). 7 The first application came before Price J. Orders were made that Mr Wilde be medically examined by two forensic psychiatrists, Dr Jeremy O'Dea and Dr Allnutt. Dr Olav Nielssen also provided evidence, as did various psychologists attached to the Department of Corrective Services. In the first of two judgments, Price J reached the following conclusion in relation to that evidence: "[83] Each of the experts who has interviewed the defendant assessed him as being in a high risk group of sexual reoffending. Dr Allnutt was of the opinion that if the defendant reoffended sexually, the sexual offence would most likely be a serious sexual offence. Dr O'Dea considered that the defendant was a significantly high risk of reoffending in the long term. Dr Baron opined that the defendant was assessed as being in a high risk group of reoffending which included sexually violent offences." 8 His Honour added: "[84] Considering in combination the defendant's non-compliance with obligations imposed upon him by a court or upon release on parole, his pattern of serious sexual offending, the expert evidence, particularly the opinions of Dr Allnutt and Dr O'Dea and the absence of treatment, I am satisfied to a high degree of probability that the defendant is likely to commit a further serious sex offence if he is not kept under supervision." 9 Price J therefore did not propose to dismiss the application. His Honour thereafter dealt with the issue of whether adequate supervision would be provided by an extended supervision order. The Attorney General was obliged to satisfy the Court to a high degree of probability that it would not (para [88]). 10 Mr Wilde had not undertaken the sex offenders treatment programme available in goal, The Custody Based Intensive Treatment Programme (known as "CUBIT"). There were two difficulties. First, to qualify for CUBIT, an offender must acknowledge his guilt. The idea is that, in group therapy which will then be undertaken, the offender should confront his crime with a view to eradicating such behaviour in the future. Mr Wilde acknowledged his guilt in respect of the 1981 rape (and the associated offences), which he insisted was motivated by revenge, rather than sexual deviance. As mentioned, he denies his guilt in respect of the 1983 and 1991 offences. 11 Since Mr Wilde had at least acknowledged some guilt, his refusal to admit guilt in respect of the second and third offences may not have been an impediment to his undertaking the course, were it not for the second difficulty. The second difficulty was that Mr Wilde had an aversion to paedophiles. It had come to his notice, according to his evidence, that his young daughter had died at an early age at the hands of a paedophile. He therefore did not trust himself, in the presence of a paedophile, to refrain from violence. He sought to avoid such situations. Since paedophiles constituted a significant proportion of sex offenders undertaking the CUBIT programme, he believed the course was unsuitable for him. The end result has been that Mr Wilde, from the viewpoint of the Department, remains untreated. He had been denied parole upon that basis. 12 Ms Booby, the Director Offender Services and Programmes for the Department, gave evidence before Price J that there were no community based programmes suitable for the treatment of a high risk offender, such as Mr Wilde. She also gave evidence of an alternative, modified, CUBIT programme that could be undertaken by Mr Wilde, provided he remained in custody. 13 The application was dealt with late in 2007. There was simply not the time available that year to determine the suitability of the alternative programme suggested by Ms Booby and to explore Mr Wilde's attitude to it (para [121]). The matter was stood over until January 2008. 14 When the matter resumed, the Court examined the adequacy of the risk management plan formulated by the Department, which would operate if Mr Wilde were released from custody subject to an extended supervision order. There were a number of issues. Mr Wilde had no family or friends to assist him upon release. There were difficulties in procuring accommodation. It was also plain that he would require treatment upon release, both psychiatric and psychological. He had been incarcerated for all but four months since 26 March 1981. The Community Forensic Mental Health Service ("CFMHS") (which is part of Justice Health and attached to the Department of Health) could assist, although there were limitations. Dr Allnutt, the Clinical Director of that service, said that it was neither funded nor staffed to take on the primary responsibility for the care of a high risk offender. Price J, in that context, said this, referring to counsel for the Attorney General: ([2008] NSWSC 14) "[14] Mr Menzies QC alleviated some concern about the cost of a proposed plan in his final address when he said that the plaintiff would meet the cost of ensuring its implementation if ordered by the Court." 15 At the resumed hearing, the Attorney General sought an order that Mr Wilde be detained for a further 25 months, to undergo treatment. Price J's conclusion in respect of that submission, was as follows: "[33] A detention order should be made, the plaintiff submits, for 25 months from the date of the order to enable the defendant to complete the three-stage treatment plan. The evidence however, supporting a view that the defendant's dynamic risk factors will be best addressed by the Department's three-stage plan as opposed to the alternative group based sex offender program at Goulburn is not persuasive." 16 His Honour then dealt with the alternative suggested programme. He said this: "[34] Under the alternative group based sex offender program individual sessions for the defendant with psychologists can be commenced immediately at Goulburn. Furthermore, the defendant's objection to associating with paedophiles is removed by the adult same sex offender group sessions. Whilst Ms Booby suggested that this program might take longer than six months, it seems provided that the defendant is a willing participant there is no reason for the program to take much longer than this time. Either treatment program depends on the defendant's desire to address his dynamic risk factors." 17 Price J's ultimate view was as follows: "[35] The defendant has been detained under the interim detention orders for almost three months. The making of a continuing detention order has very serious consequences for him. He will be deprived of his liberty to which he is otherwise entitled. Should the defendant's dynamic risk factors be able to be addressed by a program which deprives him of his liberty for a shorter period of time that option should be preferred. The need to protect the community might be addressed if the defendant is willing to undertake the program proposed at Goulburn. A failure by the defendant to undertake or complete the program may result in an application by the plaintiff for a further continuing detention order. On the other hand, successful completion by the defendant of the program within eight months will enable him to apply for the order to be revoked."

[4]

The third application. 20 When the matter resumed before me on 23 October 2008, the Attorney General filed an Amended Summons. Whereas the previous Summons had sought an order for the further detention of Mr Wilde for seven months, the Amended Summons sought his detention for a further two years. Mr Menzies QC, appearing with Ms Mitchelmore for the Attorney General, provided the reasons for the amendment in his opening, which was as follows: (T 2) " … Justice Price delivered a judgment of an interim nature and then on the 24th of January this year he ordered that Mr Wilde be subject to a continuing detention order for a period of 8 months. At that time it was thought that a further period of detention coupled with treatment in an intensive program would at the end of that period have so ameliorated Mr Wilde's then condition, if that is the right word for it, that he could then be released under supervision. It has become apparent now that that has failed, and so the matter is coming back for a further application. … The summons in its present form seeks a further detention order for a period of 7 months. That application was made upon the basis of the evidence of Ms Booby to the effect that a further 7 months would then see appropriate improvement. Subsequent to that Mr Wilde has been seen by three psychiatrists with some variation in their views. Essentially their opinion seems to be that further treatment in custody will not help him; that treatment arguably of any kind will not help him. That is not a consistent view among the three of them. Insofar as there is treatment available that may help him he resists it. And so one is then faced, and your Honour will be faced with, the stark alternative of further detention or release on supervision. Because the psychiatrists' views seem to be that the prognosis is fairly dismal, the Attorney is now in the position of having to seek an order for a more extensive period, and we will seek in due course to amend the application to increase the period of detention to 2 years. 5 years is the maximum available under the statute. Now, in a sense 2 years is arbitrary. It is trying to strike a balance between expectation of improvement and - but trying not to create a situation where Mr Wilde can see no positive future, as it were." 21 Voluminous material was then tendered. Some was historical. It dealt with Mr Wilde's crimes, his custodial history and previous applications, including medical and psychological reports (Exhibit D, vols 1 & 2). A further volume was tendered, which included the psychiatric reports ordered by McClellan CJ at CL in September, as well as reports from psychologists within the Department of Corrective Services (Exhibit A). The balance of the evidence comprised affidavits which largely sought to deal with aspects of the risk management plan that the Department of Corrective Services had formulated, which would operate if Mr Wilde were released under an extended supervision order. 22 The Attorney General's primary submission was that the Court would be satisfied that Mr Wilde could not be safely released, even under strict conditions. Although he had attended the alternative Adult Offender Programme, and had completed 37 sessions, there had been no material change. Mr Wilde, according to the Attorney General, refused to engage. Indeed, he described the programme as "garbage". Ms Booby, the Acting Executive Director, Offender Services and Programmes, in any event, regarded the Adult Offender Programme as markedly inferior, in terms of its scope and intensity, to the CUBIT programme which was available to sex offenders. She continued to see the CUBIT programme as Mr Wilde's best option (Exhibit E, para [22]). The completion of that programme would require, however, Mr Wilde's continued detention. There was, in her view, nothing comparable which could be undertaken within the community (Exhibit E, para [28]). 23 Mr Morison of counsel, appearing for Mr Wilde, was invited to respond to the Attorney General's opening. Counsel indicated, helpfully, that on the medical evidence, Mr Wilde should still be regarded as high risk. The most recent medical evidence suggested that nothing had materially changed in terms of risk since Price J made his determination in January 2008 (T 17). The issue, therefore, was whether the Attorney General could satisfy the Court, to the high degree of probability necessary, that adequate supervision could not be provided by an extended supervision order (s 17(3) of the Act). Counsel foreshadowed that Mr Wilde would agree to abide by the conditions which were attached to the Amended Summons, being the conditions appearing in the risk management plan formulated by the Department of Corrective Services. 24 Mr Wilde gave the same assurance in the context of similar, although not identical, conditions in September 2008. The conditions formed part of the Attorney General's application for an interim order before McClellan CJ at CL. In the course of the hearing, Mr Wilde said this, in answer to a question by the Chief Judge at Common Law: (T 52 (15.9.08)) "HIS HONOUR: Q. Mr Wilde, do you agree to abide by all of the conditions? A. Yes I do. Q. In that document? A. Yes." 25 The conditions in the Amended Summons, however, were rather more elaborate. They included the following: " Treatment/Obligations 20. The defendant must accept psychological and psychiatric treatment as may be provided by an Area Health Service, in consultation with the CFMHS, including counselling, psychological therapy and any anti-psychotic or other psychiatric medication as indicated. 21. Without limiting paragraph 20 above, the defendant must accept sex drive reduction medical treatment, if prescribed by a medical practitioner, as may be provided by an Area Health Service, in consultation with CFMHS such as anti-libidinal treatment. 22. The defendant must attend regular medical consultations, physical examinations, pathology testing, and medical imaging as directed by the Area Health Service in consultation with the Community Forensic Mental Health Service (CFMHS). 23. The defendant must attend consultations with the Area Health Service or CFMHS, at such a frequency as specified by the CFMHS, at a venue and time as directed by his treating clinicians. 24. The defendant must accept such psychological intervention by psychologists employed by the Department as may be offered to him. 25. The defendant must engage a General Practitioner; he must notify the Departmental supervising officer of the identity and address of the general practitioner and provide consent to the disclosure of confidential medical information as between the General Practitioner and any other treating psychologist and/or psychiatrist and the Departmental supervising officer. 26. The defendant must disclose to the Department the identify of any other medical or mental health practitioner that he consults." 26 A problem was immediately apparent. Mr Wilde, in recent interviews with psychiatrists and others, made it plain that he distrusted psychiatrists and would not take medication prescribed to lower his libido or alter his mood. He did not see the need to do so. He said that there was nothing abnormal about his libido, nor his mood. He acknowledged that he was sometimes passionate when expressing his views, which some mistakenly viewed as anger. However, he had undertaken an anger management course in gaol and had been complimented upon the control he was able to exercise over his temper. 27 In these circumstances, the issue of compliance could not be dealt with simply by means of an assurance by counsel from the bar table. It was important to know precisely what Mr Wilde's attitude was to each suggested condition, one by one. Indeed, that had to be clear before the doctors were called to give evidence the following day. Mr Wilde was then called. He said this: (T 39/40) "A. Sorry. Because of all of the gaol I have done, your Honour, I have an extreme deep mistrust for psychologists of the department, but more for psychiatrists of the department. I also have an extreme mistrust of the use of medication considering I've never came (sic) across with any kind of a mental disorder of any kind that warrants such medication, nor do I have an abnormal libido. I have committed an offence against a woman once, yes. I freely admit that. I've been in gaol for that, fully atoned for that, but I have not done the two pre, previous or subsequent ones that I have been convicted of. Now I understand the Court has to go by the fact that I've been duly convicted by a Court. I can understand that. Right. But every time I've seen somebody who has been in the prison system who's seen psychiatrists and had medication put to them, they have turned into a zombie. Half the time the medication was never required or needed by the person. Just a bit of proper one-on-one counselling by psychologists, or some other counsellor, yet the department simply takes it upon themselves to issue medication like they were lolly pills. I've got no problem with seeing a psychologist. I actually believe I actually need to see a psychologist just because of the gaol because of all the trauma I've gone through in gaol and to assist me in getting back into and integration with society and I have every intention, whether the Court ordered or not, of seeing a psychologist. Right." 28 His evidence continued: (T 40) "A. I have got no problem with seeing a psychologist or a psychiatrist, if that sort of ordered by the Court. I may not like to do it, but I will do it if the Court orders. But to -- Q. What about a psychiatrist? A. Yeah, even if a Court orders a psychiatrist. But to do medication, that I am against because I have great concern of my mental health or physical health as such medication being given to me that's not warranted. Q. That applies to all medication, does it? Not simply the anti, or the medication designed to lower libido, but to any antipsychotic medication as well? A. I don't have a psychotic behaviour your Honour. I have a problem with authority."

[5]

The medical evidence. 29 The medical experts gave concurrent evidence on the second day of the hearing. There were differences in emphasis, but no disagreement. None suggested that Mr Wilde was suffering from a major psychiatric illness. Each was satisfied that he had a personality disorder with antisocial and narcissistic traits. Dr O'Dea (and others) made the comment that there was an evident problem with anger, which had been pervasive throughout Mr Wilde's prison life (T 81). So far as a sexual disorder was concerned, Dr O'Dea expressed the common view of all experts, when he said this: (T 81/82) "Lastly, I guess, quite importantly, looking at the issue of whether he would attract a psychiatric diagnosis of a paraphilia or sexual disorder. He denied awareness of any particular sexual deviance so I wasn't in a position to diagnose that above and beyond considering the offending behaviour he engaged in." 30 Dr Allnutt added the following: (T 83) "I think the most important issue here is that he manifests a history of behaviour involving deviant sexuality and that is the risk." 31 The diagnostic criteria for paraphilia required four components, some of which were absent from the history which Mr Wilde had provided. That history included his assertion that he was innocent of the second and third offences. Nonetheless, Dr O'Dea made it clear that, based upon Mr Wilde's criminal history, he strongly suspected "some underlying sexual deviance" (T 86). He added: (T 86) " … but in terms of a treatment program, I would be taking the view that there is certainly sexual deviance there that needs to be understood, at the very least, these offences." 32 The panel then discussed the risk of further serious sex offences if Mr Wilde were released. Was treatment available, either inside gaol (as advocated by Ms Booby) or in the community, which would significantly ameliorate that risk? None of the experts believed that further custody based treatment (such as CUBIT) would reduce the risk of reoffending. The issue was whether there was treatment available in the community that might adequately address the risk? 33 Dr O'Dea gave evidence that he would consider using testosterone lowering medication which, in most people, works fairly rapidly. Dr Allnutt agreed, stating this: (T 88) "When it comes to treatment one has to deal with three issues, drive, internal inhibitions, and then there is also external inhibitions. So three things need to happen for a person to offend. They need to want something, need something, desire something, they need to overcome whatever is inside them to stop them from doing it, such as justification, consideration of consequences et cetera, et cetera, and then they need to overcome external barriers to get to the thing they want. So a simple way of approaching treatment is we need to deal with the drive. In my view there is evidence [of] a deviance drive and as Dr O'Dea said the best way, one of the best ways of dealing with drive, drive is generally quite biological, is with something like medication, to reduce sex drive. The second way is to deal with psychology, internal inhibitions, to [shore] them up, to help the person to develop the capacity to inhibit the drive. That is psychology, that is cognitive behaviour therapy and understanding the triggers and then the third measure of external factors, some of us don't need external inhibition. We don't need someone to tell us, to put barriers, but depending on how strong the drive is and how weak the internal capacity is determines the level of external control that is required." (emphasis added) 34 Dr Roberts was in general agreement. He gave the following evidence: (T 88) "I suppose what I would like to add and I support what my colleagues said with regard to treatment. I do believe that a pharmacological medication approach is going to be of benefit in Mr Wilde's case. And I do believe that a psychological or psychotherapeutic approach would also be of benefit. The difficulties that concern me in terms of [a] pharmacological approach is that we do require Mr Wilde to consent to treatment, to accept and have some regard for the prescriber, and to be compliant not only with the treatment as prescribed but any additional clinical review that may be required, such as blood monitoring, clinical investigation, to ensure that it remains safe and appropriate in the long term." (emphasis added) 35 Dr O'Dea, in later evidence, enlarged upon his view in these terms: (T 113) "The next question is, if he were to be released into the community what would be appropriate to manage his risk and then if that were put in place would that manage his risk, and as I put in my report and I think it seems generally considered consensus by the others that if he were to get released into the community then an extended supervision order of the type that Dr Allnutt alluded to with the biological, psychological and supervisory components , would be the most appropriate, and notwithstanding the consent issues we have talked about, the psychiatric input for the consideration of medication, psychological input, and supervision, is likely to afford the best management program. Whether that would reduce the risk significantly is another matter, and it would be my view that it would be required I think to have all three parts of that and functioning in order for that risk to be adequately managed , and it would be something that would not be static. It is something that would have to be reviewed regularly and also accordingly reviewed to see how it is going. That is how I would approach the issue of this very difficult question of whether the risk management strategies are likely to prove effective." (emphasis added) 36 Counsel for Mr Wilde, in cross examination, identified Mr Wilde's concern about the side effects of the medication and whether it was safe to take it. He invited their comments. Each psychiatrist indicated that he shared Mr Wilde's concern. There were significant potential side effects. The dosage would need to be carefully adjusted to obtain the desired effect without unwanted side effects. In time the dosage may be able to be reduced without jeopardising control over sexual deviance (T 95). The body, as it were, may reset the level of testosterone production. 37 The following was then put to each medical expert: (T 118) "HIS HONOUR: … am I wrong in my impression, that each of the doctors who has given evidence really believes that in the context of Mr Wilde and his history and background that certainly in the initial phases, and that may extend for some time, that the medication would form a necessary part of risk management, were he released into the community?" 38 Each doctor, in turn, signified his agreement. Shortly before this occurred, and in the context of the discussion between experts about the control of side effects, Mr Wilde made the following statement from the body of the court: (T 116) "I can easily state that I will do [t]his in light of what I said here today - heard here today - because prior to this I have never known what the effects were, how it would be used, when you use it, how long - I was completely ignorant of those things." 39 Mr Wilde was called to give evidence the following Monday. He was reminded of his statement and asked to elaborate. The transcript is in these terms: (T 232) "Q. What did you mean by that statement? A. Well, prior to hearing what the doctors had said, I had been given no information outside of the drugs that were intended to be used. And I wasn't prepared to be used as a test guinea pig. Q. What is the situation? A. Now that I have been given more relevant facts about it, and I understand it a lot more, I am willing to undergo it, because it can be done in a safe [manner], and I don't consider myself to be a test guinea pig. Q. So is it the situation or you unreservedly indicate that you are prepared to consent to whatever medication is proposed by a treating psychiatrist prescribes to you? A. While I am under an order, yes. Q. And in particular, it would appear that the most significant medication [to] have been suggested is the anti-libido or testosterone-changing medication that affects sex drive. That's the number one medication that's proposed, first and foremost. Do you agree to accepting that medication, if it is prescribed to you by a psychiatrist? A. Yes. Q. In addition to that, there is proposed potentially some other medications, although there is some potential reservations even from the psychiatrist as to when they will be prescribed. But in any event, if it's deemed appropriate by them at whatever stage under the course of a supervision order, should it be granted by his Honour, that other medications affecting mood or anger or those type of things, it's deemed appropriate by the treating psychiatrist that you be given that medication, do you unreservedly agree and consent to taking that medication? A. Any medication, so long as it's done in a safe manner. Q. So is that a yes? A. Yes." 40 The doctors gave evidence that regular blood tests could be undertaken to ensure that testosterone levels had been reduced to the desired level. There would be advantage, according to the medical evidence, in Mr Wilde seeing a psychiatrist at once, whilst still in custody and, if appropriate, commencing medication before his release (T 118). However, there would need to be informed consent. Blood tests would be necessary, as well as a bone scan to ensure that it was safe for him to take the medication which the forensic psychiatrists had in mind. 41 Assuming consent, and assuming Mr Wilde's suitability for such treatment, would such a course, in the context of the supervision contemplated in the risk management plan, significantly reduce the risk of Mr Wilde committing further serious sexual offences? Counsel for the Attorney General, in addressing that question in cross examination of the experts, introduced a metaphor for the extended supervision order, "a three legged stool". One leg would be the medication, given under the supervision of a psychiatrist; a second would be the treatment provided by a psychologist, who would assist Mr Wilde in the readjustment process; and the third leg would be the supervision to be undertaken by the Community Compliance Group ("CCG") (forming part of the Department of Corrective Services), who would ensure compliance by Mr Wilde with the detailed conditions of the management plan. In the context of that metaphor, Dr Allnutt said this: (T 121) "(MENZIES): If an appropriate analogy is to say the risk management is a three legged stool and one needs the three legs. (Dr Allnutt): Ideally. But, well, not necessarily. One needs three legs to stand alone, but one can prop up the stool if one strengthens two of the legs if one is weak. So, in other words, one reduces drive, increases restriction, then you require less psychology or internal, internal capacity. But, ideally, what one would like is a balance. Drive is down, external - internal capacity is relatively high, therefore, less external restriction. That's ideal. But in this situation I think that it is weighted on that side of the triangle (witness indicated) because this corner (witness indicated) is weak at this point in time." 42 Dr Allnutt added: (T 122) "I think given the level of concern one would want to start with the high level of restriction and supervision in the short term, and then take it from there. And I think initially, my, my, if it's possible, the approach should be to chaperone in the community, initially, to see how he behaves, to see how he integrates, to get some sense of what he is like in the community before allowing freedom to go out by himself. That would be ideal. Whether or not that can happen or not is dependent on probation and parole." 43 Dr O'Dea addressed the same issues in these words: (T 123/4) "Well, I guess, really it is an issue that you raised. You're paraphrasing in a sense, that he is a high risk, and the issue is how to manage that risk. And obviously, it is not going to be completely ameliorated and there'll always be risk. And the ultimate question, is that level of risk - how much is that level of risk? And is it acceptable to the community? But it seems to me, in your three legged stool analogy, the issue in terms of managing that risk from the scientific evidence, I shouldn't say that, from the evidence to date, it seems that the two big ameliorators of risk will be, or have proved to be in the past, supervision and medication , both of course have not had water tight scientific evidence to support it, but they seem, also in Mr Wilde's case because all that has been discussed, two key components that are likely to manage that risk. Psychological interventions is like a bit of a misnomer, because in essence there's two components to it. One is the psychotherapeutic approach, and certainly all the practitioners involved in his care who come from a health and mental health background are going to provide psychotherapeutic interventions for him, and that is I think going to be an adjunct to the supervision. And the medical approach. I guess we're also talking about a particular psychological approach of relapse prevention. That is also likely to be helpful to be provided in that mix , but in and of itself I think it is not going to significantly reduce his risk, in part, for all the reasons we have heard about. But it seems to me that if we are able to put in place those three components, and in particular the supervision, and the medication, essentially we are going to do all that we possibly can because nobody, including myself, had thought of anything further to manage the risk other than full-time custody, and obviously the extended supervision order is to look at an alternative to custody. All of these issues we are discussing are going, arising now and arise in a year, two, three, or four years if we return to the circumstances. But it seems to me that if we can put those three in place, we are likely to significantly reduce and manage Mr Wilde's risk. I think further than that, I am not sure I can say anything, or anybody can say anything, to quiet the community about Mr Wilde." (emphasis added) 44 Dr Roberts provided the following comment: (T 124) "There are a couple of points that I think are worth making. There's a risk that we are creating the impression that we feel hopeless towards the prospect of psychological intervention being of real benefit, thus, from my understanding, the psychological intervention that's being provided to Mr Wilde is that it has been very much directed at sexual offending and the limitation of future sexual offending. On release into the community there are aspects of psychological intervention which I believe are going to be very important in an indirect way in mitigating risk. If [he is] reintegrate[d] effectively, if he can develop effective interpersonal relationships, if he can feel comfortable within the broader community, all of these sorts of things will, in my view, assist him to fit in and will indirectly reduce risk. (emphasis added)

[6]

Evidence from psychologists. 45 I should, in this context, refer to evidence provided by a number of psychologists. It forms part of the material relied upon by the plaintiff in support of the Amended Summons. 46 Mr Ware, a psychologist with the Department of Corrective Services, was asked by Ms Booby to provide a risk assessment report. He did so (Annexure H to affidavit of Brett Frederick Thompson sworn 19 August 2008). He had not seen Mr Wilde, who refused to be interviewed. He nonetheless was familiar with his background from Departmental files and the medical evidence. He believed that further treatment was necessary and should be undertaken in custody. 47 Mr Baird, a psychologist with the Department, was one of the supervising officers of the adult sex offenders' programme undertaken by Mr Wilde at Goulburn in March 2008, following the judgment of Price J. Mr Baird's assessment was not as bleak as that of Mr Ware. Indeed, it should be noted that Mr Ware, as his supervising officer, also agreed with Mr Baird's report. That report (dated 14.7.08) (Exhibit G), included the following comment: (p 19) "There are a number of indications of good general self-regulation in Mr Wilde's recent history as well as some room for improvement." 48 Mr Baird noted an increasing level of Mr Wilde's self regulation in terms of custodial charges. He said this: (p 19) "However Mr Wilde himself is aware of a significant issue of general self regulation, which involves his concern that he will react aggressively in response to police who abuse their power in dealing with him. Mr Wilde readily acknowledges that responding in such a manner could be very detrimental to his freedom once released and has asked for my assistance in addressing this point a number of times in group." 49 When framing his recommendation, Mr Baird made the following comment: (p 23) "I am unsure what to recommend in order to continue to address Mr Wilde's dynamic risk factor deficits should he remain in custody. I am, however, currently of the opinion that the lack of opportunities for normal social and interpersonal contacts that are present in the custodial environment will greatly limit the rate of development in the areas in which Mr Wilde needs development to better manage his risk of reoffending sexually and violently. I do not believe that Mr Wilde will make substantial gains in the development of compassion and intimacy skills, or in developing his ability to cope with the perceived abuse by authority figures while he remains incarcerated." (emphasis added) 50 He added: (p 23) "Should Mr Wilde be released from custody in September 2008 under an extended supervision order I recommend that he receive appropriate support to facilitate the continuing development of the social and interpersonal skills that he has not had the opportunity to practice while incarcerated." 51 Mr Michael McElhone, a psychologist with the Department, was also asked by the Commissioner to provide a report (Exhibit A, tab 4, 16.10.08). He met Mr Wilde for the purposes of preparing a report. Mr Wilde, however, was only willing to discuss the first offence, but not the second or the third. He therefore would not sign the consent form and Mr McElhone felt obliged to terminate the interview. He prepared his report upon the basis of information provided by the Department's file and the medical evidence. He noted that all psychiatrists regarded Mr Wilde as being in the high risk category for reoffending (p 9). He did not believe that Mr Wilde, in the recent course that he had undertaken, had made substantial positive changes to the risk factors. He regarded his refusal to discuss the 1983 and 1991 offences as being "of major concern". He stated that if an extended supervision order were made, the following would be necessary: (pp 9/10) "46. A behavioural management plan would need to have clearly defined expectations for Mr Wilde in terms of his behaviour. It would require strict adherence on his part to these expectations. A system or rewards could be developed as Mr Wilde met the expectations of this plan. 47. Mr Wilde would need to adhere strictly to the conditions of any risk management plan supervised by the Department of Corrective Services. His deficits in relation to poor cognitive problem solving, hostility and a negative approach to supervision could be expected to make his involvement in supervision very problematic." 52 Messrs McElhone and Baird formed part of the panel of experts who gave concurrent evidence. In the course of that evidence, Mr Baird said this concerning the level of engagement by Mr Wilde in the Adult Offender Programme: (T 120) " … Mr Wilde engaged in, within those limitations of not discussing the second and third offences, Mr Wilde engaged in the treatment process quite fully. He was very, I think, enthusiastic and present member of the treatment group. And in a range of other areas, such as self esteem, and some less pertinent areas, Mr Wilde engaged very, very well in those areas and demonstrated a good knowledge of the other less significant dynamic risk factors, as we call them, such as interpersonal skills, a knowledge of those self esteem issues. Yes, I suppose that's the major concern for me. If you assume the existence of sexual deviance 17 years ago, we have no measure of that and no management strategy for it." 53 Ms Jennifer Howell, a psychologist in private practice, gave evidence. She specialised in the area of sex offending. Many of her clients were referred to her by the Department of Corrective Services. She spoke briefly to Mr Wilde before giving evidence. She said that, were she to undertake treatment in respect of Mr Wilde, she would expect such treatment, in the initial phase, to involve sessions twice per week, reducing to once a week. Realistically she thought that the treatment would need to be undertaken for about two years. 54 There was an issue concerning the cost of that treatment. Ms Howell has had the experience of Medicare refusing rebates in respect of consultations undertaken with a sex offender. She has also had the experience, in the context of an extended supervision order, of the Department of Corrective Services or the plaintiff resisting payment for such services. I will return to the cost of treatment below.

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Other conditions in the management plan. 55 One of the affidavits relied upon by the Attorney General, in support of his application, was that of Ms Viviane Fahs (Exhibit G). Ms Fahs is the Operations Controller of the Community Compliance Group. She was responsible for the development of the risk management plan in relation to Mr Wilde (which then became the conditions sought by the Attorney General were Mr Wilde to be released subject to an extended supervision order). Ms Fahs was, for many years, a probation and parole officer. She has been involved in the management of approximately 88 serious sex offenders. The Community Compliance Group (CCG) monitors and intensely supervises each person subject to an extended supervision order. By this means it seeks to minimise the risk of reoffending (para [8]). The supervision may take the form of an unannounced home visit, surveillance, an intelligence check, psychological assessment and other referrals where appropriate (para [8]). 56 Suitable accommodation is a recognised problem for long term inmates (and especially sex offenders) upon release. The conditions suggested by Ms Fahs (and incorporated into the Amended Summons) included the following: " Accommodation 1. For the duration of the order the defendant must reside at accommodation approved by the Commissioner of Corrective Services. Note: (a) It is envisaged that the defendant should reside at the Community Offender Support Program (COSP) Centre at Malabar and would remain at the COSP Centre for up to 6 months. (b) At the conclusion of any period in which the defendant resides at the COSP Centre, it is envisaged that he will transfer to other accommodation arranged by the Departmental supervising officer and approved beforehand by the Commissioner. 2. The defendant must be at his approved address between 9pm and 6am unless his presence at another place during those hours has been approved by his Departmental supervising officer." 57 Ms Fahs gave evidence that, in the case of Mr Wilde, a more restrictive curfew could operate in the early stages, gradually being relaxed as Mr Wilde demonstrated compliance. Under the conditions proposed, he would be obliged to wear an electronic monitoring device(s) (Condition 8). He would also be obliged to accept directions from the Departmental supervising officer of the Department of Corrective Services ("oversight"). Mr Wilde would have to discuss with his supervising officers, in advance, his proposed movements each day. His plans would be subject to their approval. Approval could be withheld if his plans appeared to give rise to an unacceptable risk of reoffending (Condition 9). He is forbidden from having alcohol, drugs or abusing prescription medication (Condition 13). It was envisaged that, in the period immediately after his release, the team supervising Mr Wilde could accompany him to medical appointment and the like to ensure that he was "on track". They could, to a very limited degree, provide the chaperone service that Dr Allnutt thought desirable (supra: para [42]).

[9]

there would be a significant amelioration of the risk of Mr Wilde reoffending. It would then be appropriate for an extended supervision order to be made. The alternative was to keep Mr Wilde in gaol where it was unlikely, on the medical evidence, that any treatment would reduce the risk. Although the order sought by the Attorney General was detention limited to two years, the further detention of Mr Wilde was unlikely to change the risk. In that circumstance, a further application by the Attorney General at the end of that two year period asking for yet more time in custody was almost inevitable, and so it would go on until Mr Wilde reached an age, perhaps 60 years, where the risk of a further serious sex offence was judged to have diminished. 59 However, consensus between the experts having emerged on the second day, counsel for the Attorney General said this: (T 132) "(MENZIES QC): My learned friend and I have been having some discussions about where we go from here. In the light of some of the matters that the medical experts have expressed, particularly in light of what Dr Allnutt had to say, it would be useful I think if we were to have an opportunity to take some instructions from some of the Probation and Parole Service officers and the Commissioner to see whether there is a possibility of us coming up with a regime which might be acceptable to my learned friend. HIS HONOUR: Something very specific in terms of obligations. (MENZIES QC): Yes, your Honour, and I wouldn't be able to do that today. What I had in mind would be asking your Honour to adjourn now and resume on Monday and on Monday, I may have some instructions which enable us to either resolve the matter or at least narrow the compass - narrow the areas of disputation even further." 60 The matter was adjourned until Monday 27 October 2008 in the hope that the management plan could be amended to reflect the specific obligations of Mr Wilde in respect of treatment, which had been the subject of the expert evidence.

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Resumed hearing. 61 The matter resumed on Monday 27 October 2008 (Day 3). The Attorney General, however, had second thoughts. His counsel sought to tender an affidavit of Ms Sarah Brennan (Exhibit H). Ms Brennan is the Regional Executive Director of the Inner Metropolitan Region of the Probation and Parole Service with the Department of Corrective Services. She is in charge of a complex at Malabar known as the Long Bay Community Offender Support Programme ("COSP"). The complex has been operating for five months. It is designed to assist offenders in crisis and those unable to find accommodation. Many of those who use the facility are on parole. 62 Ms Brennan gave evidence that she had not met Mr Wilde. However, she had been given his history and the recent medical reports. She believed, upon the basis of that material, that he was unsuitable to be housed at Malabar. Difficulties could be predicted in his complying with directions by staff. The centre has limited staff and most are female. They work closely with the Maroubra Police, but there is ordinarily a delay of at least ten minutes between the time police are called and their arrival. The centre has limited security. 63 The Malabar centre is very close to a pre-school (T 148). It is therefore thought unsuitable for child sex offenders. It was upon that basis that it was recommended by Ms Fahs as suitable for Mr Wilde. Nonetheless, Ms Brennan explained that, in the short period that it has been open, two child sex offenders had been housed at the centre because of the difficulty in finding alternative accommodation. There are, however, no child sex offenders living there at the present time. 64 Ms Brennan, in her affidavit, said this: (Exhibit H) "19. The main difficulty I perceive with the reporting and monitoring obligations in the plan is that they require Mr Wilde to be compliant with them. Mr Wilde's history in custody has demonstrated an inability on his part to comply with routine and the directions of staff. He also has a history of challenging staff. If Mr Wilde presented in the same way in the [Malabar centre] then I anticipate that the staff would have great difficulty in managing him and ensuring his compliance with the reporting and monitoring requirements of the supervision plan." 65 Ms Brennan, in her evidence, gave an illustration of the difficulty that had arisen in respect of another resident at the centre who was non-compliant: (T 152) "A. … We actually have had an offender we rejected because of his attitude, however, the decision was overruled, we were overruled and he was placed in the COSP and during that time he was at the COSP the staff were (subjected) to verbal threats, many many verbal arguments, abuse, non-compliance of conditions and as a result that man was revoked on Friday. We had to call the police in to remove him from the premises because he became so difficult to manage. So it was from that basis of that example that I thought that if someone continually, well, will not comply with conditions, it is abusive to staff. This particular offender disliked women intensely and would make it very well known that women shouldn't be running places like COSP because it was full of men. So they were confronted with that type of behaviour for six weeks and it just became unmanageable in the centre. It had an effect on residents, it had an effect on the staff. MENZIES: Q. When was that decision made? A. On Friday, we actually put the revocation report in on Thursday and the police issued the warrant on Friday." 66 Mr Wilde was recalled to give evidence the following day (Day 4, Tuesday 28.10.08). The issues raised by Ms Brennan were taken up with him. He gave the following evidence, in answer to questions from me: (T 235) "Q. You heard the officer in charge of the Malabar complex, Ms Brennan, give evidence yesterday? A. I did. Q. And she described the experience of one particular individual that the staff originally objected to, because they anticipated that his attitude was such that he would prove to be difficult to manage. And they were overruled, and he did come, and he then proved to be very disruptive and very difficult to manage? A. That's a particular individual, your Honour. It's not myself. Q. No. Nonetheless, it is a cautionary tale. Do you understand that? A. I understand that." 67 His evidence continued: (T 235/6) "Q. All right. But anyway, I think, you know, you must be aware of it, because, you know, you have got a number of swords hanging over your head if you are released. One is that if you don't abide by the conditions, it's in itself an offence, you can be arrested and the whole thing terminated, and that's happened with others, that you would know? A. I would not intentionally place myself in a position where I could come back to gaol. I am - with all the time I have done, I am sick of it. I just want to live a free, peaceful life when possible." 68 Whilst Ms Brennan's fears are understandable, I believe that she is unduly pessimistic. Mr Wilde is unlikely to find accommodation elsewhere. He is the very sort of person for whom the accommodation at Malabar has been established. The various doctors, when identifying the circumstances in which a supervision order may be made, were well aware of Mr Wilde's personality and the difficulties he has had in the past with authority. With medication he may become more compliant. He understands that, ultimately, if he is not compliant, his right to remain at the Malabar centre may be terminated, just as it was with the person Ms Brennan described in her evidence. He also understands that, if he breaches the supervision order, he is guilty of an offence and liable to imprisonment for up to two years (s 12 of the Act). 69 However, shortly before the matter had concluded on Day 4 (28.10.08) I indicated that, without having a concluded view, the position that emerged at the end of the medical evidence the previous Friday (24.10.08) appeared to have much to commend it, namely: · first, that arrangements be made for Mr Wilde to see a psychiatrist and his suitability assessed for libido lowering medication (and such other medication as thought appropriate); · secondly, that if he be found suitable, and subject to his consent, such medication be prescribed at once; · thirdly, that the matter be brought back for a further hearing before the expiration of the interim order, at which time the treating doctor could report on Mr Wilde's progress; and · fourthly, if the report were favourable, that consideration could then be given to Mr Wilde's release upon an extended supervision order, to operate for a number of years and to include the conditions of the management plan that had been put forward. 70 At the time the matter was adjourned, it was recognised that one-on-one therapy with a psychologist may also be important, especially in the initial phase. The plaintiff and the defendant were to explore funding for such therapy, either through Medicare or the State or both. Mr Wilde, it must be recognised, would be unlikely, if released, to have independent resources for such therapy. Almost certainly he will be dependent upon some form of pension. It would be disappointing indeed if the only impediment to his release, under this legislation, was an absence of funding for essential therapy to enable that release.

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Day 5: 5 December 2008. 71 When the matter resumed on 5 December 2008, a report was tendered from Dr Ellis, forensic psychiatrist. Dr Ellis is a consultant to Community Forensic Mental Health Services. Mr Wilde was referred to him. He saw him on 6 November 2008. Mr Wilde agreed to undergo a physical examination as well as pathology and imaging studies necessary before anti-libidinal medication could be prescribed. Dr Ellis furnished Mr Wilde with written information concerning the benefits and risks associated with that medication. The appropriate course of treatment was discussed. 72 On 13 November 2008, Dr Ellis saw Mr Wilde once more, by which time the investigations had been completed. There were no contraindications to anti-libidinal medication. The desirability of the proposed treatment was again discussed. Mr Wilde signified his consent. Treatment began at once. In the three weeks that followed, Mr Wilde was reported to have been compliant. 73 On 4 December 2008, Dr Ellis again reviewed Mr Wilde. The only side effect he reported was lethargy. He still had sexual function. There was no evidence of clinical depression or psychosis. 74 Dr Ellis' report of 4 December 2008 sets out his views on future treatment. Mr Wilde will require regular blood tests and monitoring for at least three months to permit the establishment of the required dose. His history, his personality disorder (being difficulties he experiences in emotional regulation, impulsivity and interpersonal relationships and other matters) suggest that he may benefit from a mood stabilizer. However, there are contraindications to such medication. Were it prescribed, he would require psychotherapy in one-on-one sessions. The therapy would need to be provided by a psychiatrist or psychologist, or someone trained in that therapy. Justice Health was not in a position to fulfil that role. 75 Dr Ellis was called to give brief evidence. He described more fully what he had in mind in terms of psychotherapy. He said this: (T 268/9) Q. That is in the nature of psychotherapy provided by a psychologist? A. It could be a psychologist, a nurse, psychiatrist, anyone who is trained in delivering that kind of psychological intervention. Q. Do you have in mind any particular frequency? A. I think that frequency of sessions and the length of those sessions needs to be gauged over, I think, you can't just sort of take a cookie cutter approach to this level of complexity of issues but I think the psychotherapist has to have available to them some flexibility for the frequency of appointments and the length of those appointment times. Also, a person might have fluctuations in their condition so at times sessions might need to be closer together for longer duration and at other times they can be spaced out so a degree of flexibility has to be built into that and that would be very difficult to gauge at this point. I would think, if I were going to be a psychotherapist at this point, I would like to be doing two sessions a week for about half an hour to start with and then to look at varying that, depending on the response in the sessions. Other people work differently to that but that is an individual practise that is not particularly controversial. The other thing is that the psychotherapist would have some time to collaborate with the psychiatrist who at this stage would be myself so they can communicate with me so that we can both assess." 76 Ms Howell, psychologist, was recalled to give further evidence. She had since seen Mr Wilde in custody. She had the impression that his attitude to treatment was positive (T 270). She had worked with Dr Ellis in respect of other offenders. She was aware that Medicare had clarified the basis upon which it would pay for psychological counselling (Exhibit K). Subject to certain formalities, which I infer could be satisfied in the case of Mr Wilde, Medicare would fund up to 18 sessions. That would cover a number of months of psychotherapy, but would be manifestly inadequate having regard to the counselling which she believed was desirable in his case. 77 What, then, was the Department's attitude to funding psychological services beyond the 18 sessions that would be funded by Medicare? Ms Booby, the Acting Executive Director, Offender Services and Programmes, was recalled. She described once more the psychological facilities available within the community. First, groups led by psychologists meet regularly in what is termed "the maintenance programme". It is designed to maintain achievements by an inmate, as a result of having successfully completed the CUBIT programme. Such groups typically include paedophiles. Group therapy is an efficient and cost effective way of providing continuing treatment. I should interpolate that Mr Wilde, having not completed a CUBIT programme and having an aversion to paedophiles, is not a candidate for such therapy. 78 Secondly, Probation and Parole have psychologists on staff. They undertake assessments, but not psychotherapy. Thirdly, at the COSP centres, including Malabar where Mr Wilde would be housed if he were released, there are psychologists on staff. They are not specialists in respect of sex offenders. The aim is to provide for adjustment problems which are predictable in respect of inmates who have been recently released. 79 Ms Booby described other particular psychological services provided by the Department. None extend to one-on-one psychotherapy. She said this: (T 280) "Q. Coming particularly specifically to the provision of an individual psychologist to provide psychological services to a sex offender, in this case Mr Wilde? A. Yes. Q. Is there any such person available to provide that within the department? A. Not to provide ongoing treatment, no. Q. And what is the constraint? A. Well, mainly resources. The forensic psychology service, which is the community arm of the sex offender programmes, as I say, is very limited resource wise which is one of the reasons why we use a group format. And it's also, in addition to the Wentworth Avenue people we have a couple of people who work in the country, but in the Wentworth Avenue area it is totally a group format and there is no resources to start providing one on one treatment. Nor are there resources to ensure that other staff are available in the times that the treatment would happen. Q. Is there any constraint on the provision of payment for some external person to do that, perform that service? A. Well, there is from this department's point of view because we are not funded to provide, to pay for private treatment." 80 Ms Booby did acknowledge that private psychologists had, at the invitation of the Department, provided treatment for specific prisoners. Ms Howell gave evidence that she had done so on a number of occasions. 81 Ms Booby was then cross examined by counsel for Mr Wilde. She was asked about other cases involving applications under the Crimes (Serious Sex Offenders) Act in respect of a number of other offenders. She acknowledged that a prisoner named Sleeman had received one-on-one psychological treatment in the community, paid for by the Department. She said this: (T 287/8) "A. … I think in that case the relevant issue was there was some distinguishing features: one was that that young man had Asperger's syndrome and being treated for that in relation to a sex offender issue. And another issue, I believe, was that he had been in custody and he had been released on parole on the condition that he would be receiving this treatment, and then he was paying for the treatment himself and had been paying for it himself until he became unable to pay for it. And when he became unable to pay for it, that was when the request was made and the department agreed to pay for it. … " 82 Ms Booby added: (T 289) "Q. You didn't make the decision. But there are resources available. It's a question of the department making a decision as to whether they are going to provide those resources in the particular context of each individual case? A. As I said, I think in that case there were distinguishing features, particularly in relation to Asperger's. We don't have any expertise in the department for working with people with Asperger's syndrome." 83 Ms Booby was then asked the following questions by me: (T 291) "Q. Am I right in thinking that if there are special circumstances, as the department sees it, then it would be paid for, private services? A. Well, your Honour, I still have to say my memory of the special circumstances on that occasion were one of Asperger's, for which we were unable to provide treatment - - Q. I'm really not asking you about particular cases, but there is that degree of flexibility? A. In those sort of special circumstances, yes. Q. Have you given thought to Mr Wilde's particular situation - or have you sought instructions, rather? A. I haven't sought instructions, no." 84 Ms Booby indicated that she did not have the delegated authority to decide that issue on behalf of the Commissioner. The matter was then adjourned so that counsel for the plaintiff could seek instructions from the Commissioner. The issue was whether the particular circumstances of Mr Wilde should be characterised as coming within the "special circumstances" exception to the Department's general policy on funding private treatment.

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Further evidence of Ms Booby. 85 When the matter resumed on 9 December, Mr Menzies QC announced the Commissioner's response. The answer was "no". The Department would not fund Mr Wilde in respect of psychological treatment in the community (T 300). A letter was tendered, signed by Ms Booby, she having the delegated responsibility for determining the issue by the Commissioner. The letter said this: (Exhibit M) "I am the Acting Executive Director, Offender Services and Programs for the New South Wales Department of Corrective Services. On 5 December 2008, I was delegated by the Commissioner of Corrective Services, Ron Woodham, to decide whether or not the Department will pay for private psychological treatment in the event that Mr Wilde is subjected to an extended supervision order. This Department is not funded to pay for private psychological treatment. Funds that were previously available for this purpose have now been merged into a budget that is used to fund accredited programs and program facilitators to conduct group programs. If funds were provided in this instance it would necessarily be on the basis that they would be diverted from another area. Mr Wilde is in no different position to any other high risk sex offender who still requires treatment, having failed to achieve the necessary treatment goals in the custody based programs offered by the Department. He refused to participate in the Department's principal treatment program for high risk sex offenders and has failed to achieve necessary treatment goals in the alternative program provided. It follows that the Department's maintenance program, which would otherwise be appropriate, is not available. If funds were diverted to fund private psychological treatment for Mr Wilde, it is likely to mean that this would become the approach of choice for high risk sex offenders, rather than undertake CUBIT." 86 The letter also acknowledged that treatment had been funded for a prisoner, Nathan Sleeman. Mr Sleeman, however, was said to be in a different situation for a number of reasons. He had Asperger's syndrome. He was, moreover, already in the community on parole when the issue arose. The decision was made in 2005, that is before the promulgation of the Crimes (Serious Sex Offenders) Act 2006. 87 Ms Booby was recalled at my request because the letter did not, in my view, adequately address the issue, that is, whether there were special circumstances in Mr Wilde's case. It simply stated the policy and asserted that Mr Wilde was "in no different position". 88 Before dealing with Ms Booby's further evidence, I should comment upon one aspect of Exhibit M. The letter, as mentioned, referred to the Sleeman matter and did so in terms which may suggest that the decision had been made under a different regime which predated the Act, and was therefore irrelevant. However, Ms Booby gave the following evidence in the context of an application under the Crimes (Serious Sex Offenders) Act 2006 (NSW) by Alexandria George Brookes: (T 310: 9.12.08) "Q. Didn't you prepare an affidavit on 9 May this year, 2008, in which you indicated that in relation to the matter of Brookes, that there had been a decision, that there was equivalent special circumstances to the matter of Sleeman to warrant payment of treatment for Mr Brookes and that was in May of this year? A. Yes. Q. Is that correct? A. Yes." 89 The cross examination continued: (T 310) "Q. Well, why were you referring to the potential provision in special circumstances of payment for Mr Brookes in May if a decision had been made already in late December or early 2008 that such money was not going to be made available any more?" 90 Ms Booby gave an answer which, frankly, was difficult to follow. She spoke of drafting and redrafting her affidavit. Her answer included the words, "perhaps it was a mistake" (T 310/311). 91 Ms Booby was also cross examined about her evidence before Justice Price in respect of Mr Wilde's application. The context concerned payment for one-on-one treatment by a psychologist. Mr Menzies gave the assurance on behalf of the Attorney General to Justice Price set out above. For convenience I repeat the assurance which was set out in Justice Price's judgment, and was in these terms: (supra para [14]) "[14] Mr Menzies QC alleviated some concern about the cost of a proposed plan in his final address when he said that the plaintiff would meet the cost of ensuring its implementation if ordered by the Court." 92 Leaving Exhibit M, and returning to the further oral evidence of Ms Booby, she reaffirmed that there was a general rule, but the capacity to make exceptions to that rule. She said this: (T 301) "HIS HONOUR: Q. Ms Booby, I am the one who, ultimately, has to make the decision in this matter. There are one or two issues that have been concerning me. You told me last week, I will be corrected if I am wrong, that there was some flexibility in exceptional circumstances in making provision for the payment of psychological services in respect of sex offenders; is that right or wrong? A. I did, your Honour, and I think that was in reference to the Sleeman matter, but, yes, there was in that case and there are, and there would be, in exceptional cases." 93 Ms Booby was asked whether she thought there was anything exceptional about Mr Wilde's case. She said that she regarded the length of time in custody as exceptional (T 301). She also gave the following evidence: (T 302) "Q. There would not be too many who have done 28, 29 years, are there, who, in other words, are in his situation; are there? A. Well --- Q. Can you think of any, off the top of your head? A. I do not have this sort of information here. Certainly, there is a range of sentences that people have served. Q. But can you think of any who even approach anywhere near? A. No." 94 Ms Booby acknowledged that she was concerned that, if Mr Wilde were made an exception, she may open the floodgates (T 301). Yet, she did not know how many prisoners were in his situation, that is, having been incarcerated for a very significant period, having not undertaken the CUBIT programme, and therefore not able to participate in community based maintenance programmes. The CUBIT programme is a prerequisite for parole. Most undertake the programme because they want parole. Some, she said, do not, because "when they do leave custody they are relatively unconstrained by supervision" (T 301, line 48). 95 I confess that I have difficulty understanding Ms Booby's last reason. A person under parole is supervised, but an inmate who has completed his sentence, at least before the Crimes (Serious Sex Offenders) Act 2006, may go about his life, subject to the requirement to register with the police (Child Protection (Offenders Registration) Act 2000). 96 A number of matters were put to Ms Booby for her comment. The issue was whether such matters suggested that Mr Wilde came within the special circumstances exception? Two of the matters have been identified already, that is, that Mr Wilde had been continuously incarcerated since 1981, apart from four months. Secondly, I infer that he is part of a relatively small group who, for their own reasons, have forsaken release on parole by refusing to undertake the CUBIT programme. Thirdly, that contrary to the view expressed by Ms Booby in her affidavit (where she said that she still regarded the CUBIT programme as Mr Wilde's "best option") (Exhibit E: Affidavit 11.9.08, [22]), all three forensic psychiatrists said that Mr Wilde would not be assisted by further custody based programmes, including CUBIT. Against that background, the following was then put: (T 304) "Q. … If you further assume he has made what is a fairly large step for him in having medication. Now, in that context, CUBIT, medication, is there not something exceptional about that against the background of the other matters which I identified? … He may breach straight away and back inside he goes, or he may, genuinely, as he says to me, be sick of it, sick of gaol, and really does want to do something else, and that may be the very motivation which might keep him on track. Anyway, I suppose it is uncomfortable being in the middle, putting the questions to you, but these are the things which have preoccupied me. Is there anything you want to say, whether or not it strikes you as exceptional? A. It is probably not exceptional that there is a difference of opinion between medical and psychological professions about effectiveness of treatment." 97 She added: (T 304) "A. … But for people who have not done CUBIT, for other reasons, we have not made an exception." 98 Further, counsel for the Attorney General, in his cross examination of the experts, provided a metaphor for the proposed treatment, a stool with three legs (psychiatric help, including anti-libidinal medication, psychological assistance, and supervision by the Department). Reference has been made to the metaphor (supra para [41]). The availability of a Medicare subsidy in respect of 18 sessions with a psychologist would mean that Mr Wilde could, for that period, be released into the community with relative safety. Would the Department, for the balance of the year, give consideration (at least for the first year) to psychological help? Ms Booby responded that she would not say his case was exceptional (T 303). 99 I had the impression that Ms Booby could not conceive of any circumstance where a prisoner who had not undertaken CUBIT could be regarded as exceptional, no matter what his particular circumstances. Although she mouthed the words that there was some flexibility in the policy, it was my impression that she had a closed mind, which was disappointing. Her attitude appeared to be that Mr Wilde had made his bed and must now lie in it. He had chosen not to undertake CUBIT. If he now needs continuing psychological support and cannot afford to pay for it, then he must return to detention should it be determined that he cannot be released, absent psychological support. I say this is disappointing because the issue is more complex than that. Amongst other things, there are questions of humanity where a prisoner has been incarcerated for so long. 100 Much of the time after Day 2 (when there was a broad consensus) was taken in exploring the issue of the Department's responsibility (if any) to provide services which, if not provided, may require indefinite incarceration. The significant legal costs in resisting payment for psychological help to Mr Wilde was, again, plainly not a consideration. Such legal costs would exceed, many times over, the cost of psychological support.

[13]

Conclusion. 101 The regime established by ss 17(2) and (3) of the Act requires a number of steps (cf McClellan CJ at CL; Attorney General for the State of New South Wales v Winters [2007] NSWSC 1071; (2007) 176 A Crim R 249 at 290 at [138]/[139]). The Court must determine whether an offender is likely to commit a further serious sex offence if not kept under supervision. If he is, the Court must determine whether adequate supervision can be provided by an extended supervision order. If it cannot, consideration must be given to his continued detention. 102 Here, counsel for Mr Wilde conceded at the outset, that absent supervision, Mr Wilde must be regarded as high risk in terms of a further serious sex offence. Counsel urged, nonetheless, on Mr Wilde's behalf, that an extended supervision order should be made. Such an order, he submitted, would adequately address the risk (supra para [23]). 103 These concessions were made before Mr Wilde's intervention during the expert testimony (supra para [38]). During that evidence, Mr Wilde took what I believe was a giant step. Whereas previously he had been implacably opposed to psychiatric help and anti-libidinal medication, he reversed his stand having heard the experts. He is now under the supervision of a psychiatrist and has been taking that medication for about a month. His action significantly ameliorates the risk. 104 Although the risk has been moderated, its reduction, at least for the moment, is dependant upon that supervision and the medication, continuing. I am therefore satisfied that Mr Wilde is likely to commit a further serious sex offence unless kept under supervision. 105 I come to the second issue: whether adequate supervision can be provided by an extended supervision order. It is said on behalf of the Attorney General that such an order would not adequately address the risk. The Court should order Mr Wilde's continuing detention for two years. 106 However, as set out above (supra para [58]), there was a broad consensus amongst the doctors as to the circumstances in which an extended supervision order could be made. Subject to Mr Wilde seeing a psychiatrist, being found suitable for the anti-libidinal medication, and taking that medication for about a month, an extended supervision order could be made. Such an order should make provision for what counsel for the Attorney describes as the "three legs of the stool" (supra para [58]). The three legs were: · first, psychiatric supervision, including medication prescribed to reduce Mr Wilde's libido; · secondly, the provision of psychological support for a period of, say, two years; and · thirdly, intensive supervision by the Community Compliance Group for a period in accordance with the conditions of the management plan. 107 The optimism that there could be agreement between the parties after that evidence was short lived. On the Tuesday following, the Department raised a number of further objections, which appear to me to have been answered. 108 What, then, is said by the Attorney to satisfy the onus in respect of the continued detention of Mr Wilde? Helpful written submissions were provided. Much of the material canvassed in those submissions has been dealt with. Attention was drawn by the Attorney particularly to the statement by Dr Allnutt set out at [42] above, that ideally Mr Wilde should, at least in the early stages, have the advantage of a chaperone as he ventures forth. 109 However, I believe, with respect, Dr Allnutt's suggestion is a counsel of perfection. It would no doubt be an advantage to have a fulltime chaperone. The Department is not offering one and it would be expensive to do so. There will be, nonetheless, under the order proposed, supervision of Mr Wilde by a team familiar with his case. In the early stages those supervising him would, indeed, chaperone him for up to five hours a week. They would assist him in meeting his obligations to attend various appointments. More than that, Mr Wilde would be obliged to identify in advance his movements each day and seek clearance from those responsible for his supervision. Mr Wilde would also be obliged to wear an electronic monitoring device. 110 I do not believe that chaperoning Mr Wilde is essential to any extended supervision order. No other doctor made the same suggestion as Dr Allnutt. 111 The second difficulty is more formidable. Medicare will enable Mr Wilde to have psychological counselling with Ms Howell for up to 18 sessions each year. What will happen after the 18 sessions, for the remainder of that year (before a further 18 sessions are potentially available for the next year)? The Department provided mixed messages. I have referred to the assurance given to Justice Price by Mr Menzies QC on behalf of the Attorney General. The Department said it would meet the cost of treatment ordered by the Court. However, before me, there was a retreat from that assurance. I have described the evidence of Ms Booby. Her evidence was not entirely satisfactory. I am left with the impression that there was a fund, described as "a regional fund" (T 310), which apparently was used to pay for one-on-one psychological counselling in one or more cases. That fund has now apparently been absorbed, but there remains a policy, as I would understand it, where, in special circumstances, money can still be made available. Ms Booby, however, did not believe that Mr Wilde's situation amounted to "special circumstances". I believe the position on this application, in these circumstances, is the same as that described by Grove J in State of New South Wales v Brookes [2008] NSWSC 473, where his Honour said this: "[85] Ms Booby described an occasion when the Department did pay for external services, in fact provided by Ms Howell, but said that she did not consider 'there to be equivalent special circumstances' to warrant payment in respect of treatment for the defendant. I am unaware of the source of a test requiring the demonstration of 'special circumstances'. I do not accept that in a case where an order ought be made for extended supervision, the statutory intent to make that option available can be subverted by a bureaucratic decision, particularly if it is based upon an arbitrarily determined test, not to spend funds which are in fact otherwise available." 112 Grove J made an order in a particular form on this issue: (at [93]) "(j) The defendant is to participate in treatment and rehabilitation if it is made available by Ms Jenny Howell and he is to obey her reasonable directions including, but not limited to, requiring his attendance at consultations with other health, psychological or psychiatric practitioners … " 113 There was an appeal. The Court of Appeal said this, in the context of that order: (State of New South Wales v Brookes [2008] NSWCA 212) "[29] Before an extended supervision order can be made the Court must be 'satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision' (s 9(2) of the Act). Conditions may be imposed on the order. In the present case his Honour did not provide that the respondent must be treated by Ms Howell as a condition of the order. Instead his Honour provided that the respondent must accept such treatment 'if it is made available'. His Honour recognised that it would not be made available unless Ms Howell was adequately compensated. If the State does not fund Ms Howell's services the effect of his Honour's order will be that the respondent is released without any obligation for treatment. However, no question of the order becoming futile could arise. [30] This is not a case where the Court has impermissibly intervened to dictate the decision which falls within the exclusive province of the Executive or the Legislature. The evidence clearly indicates that the respondent requires treatment in order to protect the community. Ms Booby having indicated that funds could be provided to fund Ms Howell's services, the Court is entitled to expect, that the primary judge having decided that the respondent should be released under supervision, Ms Booby will, in the responsible exercise of the discretion given to her, decide to release the necessary funds. In the language of administrative law any other decision would be irrational. The Court must assume that the Executive will not make an irrational decision." 114 There can be no doubt that Mr Wilde would greatly benefit from treatment by Ms Howell, an experienced psychologist who specialises in sex offenders. Such supervision would certainly contribute to his rehabilitation, which is one of the objects of the Crimes (Serious Sex Offenders) Act (s 3(2)). I believe that, on any view, Mr Wilde's circumstances, as set out above (supra paras [96]-[98]) should be characterised as "special circumstances". 115 Assuming the psychological care were not paid for by the State after the Medicare sessions, would the absence of that care mean that an extended supervision order will not be adequate to deal with the risk? It is my view it will still be adequate. First, all "three legs" will be in place for a period of months during the 18 sessions with Ms Howell. Mr Wilde's history reveals that he reoffended within a short time of his release. There is obviously risk beyond that period, but I believe the plan will address that risk. 116 Secondly, Mr Wilde has said to Ms Howell that he hopes, upon release, to obtain employment and a wage. If he does not secure employment, he will, in any event, no doubt, receive some form of pension. He has already seen Ms Howell a number of times. He said that he would be prepared to pay as much as he could afford for such treatment, even though that is likely to be a token amount. Ms Howell, in the past, has provided support to other offenders free of charge. She is a professional woman and should not be expected to do so except perhaps in an emergency if she is so inclined. 117 Thirdly, Mr Wilde, in any event, will have access to psychologists at the Malabar Centre in respect of adjustment problems. He will also have access to a supervising team familiar with his history and able to guide him. The supervising team includes psychologists. 118 Fourthly, it is not entirely clear that psychotherapy is essential (as opposed to desirable). Dr Ellis appeared to regard psychotherapy as essential in the context of mood altering drugs, which have not yet been prescribed. They may never be prescribed. 119 Finally, Dr Allnutt was specifically asked whether all three legs of the stool were required (T 121) (supra para [41]). He responded "ideally but not necessarily". Here, I believe, psychiatric supervision and medication, as well as supervision by the Department, are essential. They will be provided. Access to a psychologist is also desirable. Access will be provided through Medicare for at least the initial period. I am hopeful that the Department will revisit the issue of whether Mr Wilde can be characterised as falling within the exception of special circumstances. His case, I believe, is truly exceptional, if only because of the length of time he has spent in gaol. It would not, in my view, open the floodgates. It is desirable that continuing psychological care is available, at least for the first year, with someone whom he trusts (such as Ms Howell) and with whom he can establish a therapeutic relationship. 120 The primary argument for the continued detention of Mr Wilde, relied upon by Mr Menzies QC in final submissions, was the absence of a chaperone and the risk said to arise by reason of that absence. I have rejected that view. Mr Menzies did not suggest that the absence of psychological counselling from someone such as Ms Howell was an impediment to release. Counselling services to assist Mr Wilde to deal with adjustment problems will be available. 121 The Further Amended Summons sets out the terms of an extended supervision order. The plaintiff has not satisfied me that adequate supervision will not be provided by an extended supervision order in the terms of that proposed (supplemented by a paragraph in the same terms as paragraph (j) in the order made by Grove J in Brookes set out above). In reaching that view, I am conscious of the matters listed in s 17(4) and the objects of the Act. The Attorney General submitted that, in the event of the Court determining an extended supervision order was appropriate, a five year term should be provided. Counsel for Mr Wilde suggested one or two years. The conditions are very onerous. Mr Wilde will shortly be 47 years old. The appropriate term, I believe, is three years.

State of NSW v Wilde

At a glance

Court

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Before

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Judgment (50 paragraphs)

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Legislation Cited (1)

Cases Cited (7)

Cited By (2)